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IRS Provides Transition Relief Regarding QSEHRA Notice Deadline

The IRS has provided transition relief under its Notice 2017-20 (the “IRS Notice”) regarding the employee notice requirement that small employers must meet if they want to provide a “qualified small employer health reimbursement arrangement” (“QSEHRA”) to their employees. As background, the 21st Century Cures Act (the “Cures Act”) permits certain employers who are not “applicable large employers” under the Affordable Care Act (i.e., generally, employers with fewer than 50 full-time or full-time equivalent employees) (“Eligible Employers”) to offer QSEHRAs for the reimbursement of substantiated medical care expenses incurred by employees or their family members, effective January 1, 2017. The Cures Act requires Eligible Employers to furnish a written notice to their eligible employees (“QSEHRA Notice”) at least 90 days prior to the beginning of the year in which the QSEHRA will be provided (or in the case of an employee who is not eligible to participate in the QSEHRA… Continue Reading

Disability Plan Can Disclose Disputed Substance Abuse Problem to Employer Without Violating ERISA

A former employee alleged that Aetna, as administrator of FedEx’s short-term disability plan, breached its fiduciary duty under ERISA when Aetna reported to FedEx that the employee filed a disability claim for substance abuse and Aetna later failed to correct this report. FedEx’s drug policy stated that the disability vendor (Aetna) would notify FedEx when an employee sought benefits for substance abuse. The U.S. Court of Appeals for the Tenth Circuit found that compliance with FedEx’s policy could not constitute a breach of fiduciary duty and Aetna had not provided inaccurate information to FedEx and thus the appeals court upheld the district court’s summary judgment on the claim. Williams v. FedEx Corp. Services and Aetna Life Ins. Co., No 16-4032 (10th Cir. Feb. 24, 2017)

House Republicans Unveil Draft Healthcare Reform Legislation

The House Energy and Commerce and Ways and Means Committees introduced two bills on March 6, 2017, collectively entitled the American Health Care Act.  The Energy and Commerce bill primarily addresses Medicaid and other state-based program funding issues while the Ways and Means bill focuses on the Affordable Care Act’s (“ACA”) fees and taxes, insurance subsidies, and other provisions that directly affect employer-provided health coverage. It’s important to note what these bills are and what they aren’t.  The bills do not represent the complete repeal of the ACA or the final word on what the American Health Care Act may look like when finished.  These are reconciliation bills intended to repeal and replace portions of the ACA by a simple majority vote in a way that would not be subject to a blocking filibuster in the Senate if brought to a vote.  The trade-off is reconciliation bills are limited to… Continue Reading

House Republicans Unveil Draft Healthcare Reform Legislation

The House Energy and Commerce and Ways and Means Committees introduced two bills on March 6, 2017, collectively entitled the American Health Care Act. The Energy and Commerce bill primarily addresses Medicaid and other state-based program funding issues while the Ways and Means bill focuses on fees and taxes under the Affordable Care Act (“ACA”), insurance subsidies, and other provisions that directly affect employer-provided health coverage. It’s important to note what these bills are and what they aren’t. The bills do not represent the complete repeal of the ACA or the final word on what the American Health Care Act may look like when finished.  These are reconciliation bills intended to repeal and replace portions of the ACA by a simple majority vote in a way that would not be subject to a blocking filibuster in the Senate if brought to a vote. The trade-off is reconciliation bills are limited… Continue Reading

DOL Delays New Fiduciary Duty Rule

In proposed regulations recently released, the DOL delayed the effective date of its new fiduciary duty rule and related exemptions by 60 days, from April 10, 2017 to June 9, 2017. The DOL’s announcement follows a presidential memorandum issued on February 3, 2017, directing the DOL to reconsider the new fiduciary duty rule to determine whether it may adversely affect the ability of individuals to gain access to retirement information and financial advice. The 60-day extension is intended to give the DOL time to collect information and to consider comments it receives related to issues raised in the presidential memorandum before the rule and exemptions become effective. For additional information on the fiduciary duty rule in its current form, please see our blog post. View the proposed regulations.

UPDATED: Energy Bankruptcy Reports and Surveys

Oil Patch Bankruptcy Monitor: details on oil and gas producers that have filed for bankruptcy since the beginning of 2015. Updated February 20, 2017. Midstream Report: details on the midstream companies that have filed for bankruptcy since 2015. Updated February 20, 2017. Oilfield Services Bankruptcy Tracker: details on middle-market oilfield services companies that have filed for bankruptcy since the beginning of 2015. Updated February 20, 2017.

Eighth Circuit Holds that Failure to Follow the Plain Language of the Plan is Abuse of Discretion

Within three years following the acquisition of Anheuser-Busch Companies (the “Company”) which resulted in a change-in-control, the Company sold its entertainment division. The Company’s pension plan provided that a plan participant “whose employment with the Controlled Group is involuntarily terminated within three (3) years after the Change in Control” would be eligible for enhanced pension benefits. The Company determined that the employees of the entertainment division were not eligible for enhanced pension benefits because they continued working with the successor entity after the sale and therefore did not terminate employment. The district court and the Eighth Circuit disagreed. Applying a plain-text analysis to the plan, the Eight Circuit determined that because the employees were no longer employed with the controlled group, their “employment with the Controlled Group” had terminated. Although the plan granted the Company discretion to interpret terms and decide benefits, it was an abuse of discretion to not… Continue Reading

Ordinary Equity Issuances to Company Insiders Can Result in HSR Act Violations and Penalties

Directors, officers, and other persons who directly or indirectly hold common stock worth close to or more than $80.8 million (the threshold amount for 2017) should consult legal counsel before acquiring any more shares to determine if compliance with the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the “HSR Act“), is required prior to completing any additional acquisitions. In recent years, the Federal Trade Commission and the U.S. Department of Justice have more aggressively enforced the HSR Act, including inadvertent failures to file that occur when an insider of a company with significant equity value acquires a small number of shares-whether through a restricted stock grant, shares issued as director compensation, the exercise of a stock option, open market purchases, or otherwise. For example, in January 2017, the agencies imposed a fine of $780,000 on an individual who was a founder, officer, and director of a company for his… Continue Reading

Secure Axcess Denied Access in Third CBM Eligibility Decision by Federal Circuit

As a result of the Federal Circuit’s decision in Secure Axcess, LLC v. PNC Bank National Association in late February, it is not likely that a flood of Covered Business Method (“CBM”) reviews will be coming any time soon.  By statute, Covered Business Method (“CBM”) reviews are reserved for patents relating to “a financial product or service,” and under the Federal Circuit’s narrow reading of that statute, the number of CBM reviews will likely remain quite small relative to the number of Inter Partes Reviews (“IPR”).  Although relatively few in number, CBM reviews have generated a number of precedential Federal Circuit opinions recently. In Secure Axcess, the Federal Circuit reversed the Patent Trial and Appeals Board’s (“PTAB”) decision finding that claims relating to website authentication were eligible for CBM review.  2017 WL 676601 (Fed. Cir. Feb. 21, 2017).  Although earlier precedent, such as Blue Calypso, LLC v. Groupon, Inc., could… Continue Reading

Welcome Texas Insurance Academy Board Members!

We are pleased to welcome Board Members of the Texas Insurance Academy to the Haynes and Boone Dallas office. Please join our Texas Insurance Academy LinkedIn Group.

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